21CA0662 Peo in Interest of CP 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0662
Delta County District Court No. 19JV34
Honorable Steven L. Schultz, Judge
The People of the State of Colorado,
Appellee,
In the Interest of C.P., a Child,
and Concerning T.P.,
Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE BERGER
Brown and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
John F. Baier, County Attorney, Adriana Hartley, Assistant County Attorney,
Delta, Colorado, for Appellee
Robert G. Tweedell, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant
1
¶ 1 In this dependency and neglect proceeding, T.P. (mother)
appeals the juvenile court’s judgment terminating her parent-child
legal relationship with C.P. (the child). We affirm the judgment.
Relevant Facts and Procedural History
¶ 2 The Delta County Department of Human Services filed a
petition in dependency and neglect regarding fifteen-year-old L.Z.,
thirteen-year-old E.Z., and newborn C.P. The petition alleged that
mother used methamphetamine and heroin during pregnancy and
that both mother and the child tested positive for opiates at birth.
The child was transferred to a different hospital’s neonatal intensive
care unit to manage her withdrawal symptoms.
¶ 3 The juvenile court accepted mother’s admission to the petition
and adjudicated the children dependent and neglected. The court
adopted a treatment plan for mother requiring that she (1)
participate in substance abuse and mental health evaluations and
follow any recommendations; (2) submit random urinalysis tests
(UAs) each week; (3) complete a parenting class; and (4) regularly
visit the child.
¶ 4 The Department later moved to terminate mother’s parental
rights to C.P. The court entered an allocation of parental
2
responsibilities (APR) for L.Z. and E.Z. with maternal grandmother,
and they are not the subjects of this appeal. After a hearing, the
court terminated mother’s parent-child legal relationship with C.P.
The court also terminated the parental rights of C.P.’s father. He
does not appeal.
ICWA Compliance
¶ 5 Mother contends that the juvenile court failed to comply with
the Indian Child Welfare Act of 1978 (ICWA).
A. Additional Facts
¶ 6 Father appeared at only one court hearing during the entirety
of the proceeding. During that hearing, the juvenile court
recognized father from a different proceeding involving another
child. Toward the end of the hearing the court addressed father as
follows:
[Father], remember the ICWA form and the
relative placement affidavit that you filled out
the last time? My recollection is you do not
have any Native America [sic] heritage, right?
I’m going to ask you to fill those forms out
again and mail them back to the Court. All
right? And then the Court will endeavor to
disseminate copies at the next proceeding.
3
Father either made no response or did not respond verbally to the
court’s questions. Father never again appeared in court and he did
not return the ICWA form to the court.
¶ 7 At the termination hearing, the court inquired of all parties
who were present, including the caseworker who had some ongoing
but sporadic communication with father, whether they were aware
of any Native American heritage for the child. No one presented any
information to give reason to believe the child was an Indian child.
B. Relevant Law
¶ 8 ICWA aims to protect and to preserve Indian tribes and their
resources and to protect Indian children who are members or
eligible for membership in an Indian tribe. 25 U.S.C. § 1901(2), (3).
Indian tribes have an interest in Indian children that is distinct
from, but equivalent to, parental interests. B.H. v. People in Interest
of X.H., 138 P.3d 299, 303 (Colo. 2006); see also Mississippi Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989). Accordingly,
in a proceeding in which ICWA may apply, tribes must have a
meaningful opportunity to participate in determining whether a
child is an Indian child and to be heard on the issue of ICWA’s
applicability. B.H., 138 P.3d at 303.
4
¶ 9 To ensure tribes have an opportunity to be heard, Colorado’s
ICWA-implementing legislation provides that in dependency and
neglect proceedings, the petitioning party must make continuing
inquiries to determine whether the child is an Indian child.
§ 19-1-126(1)(a), C.R.S. 2021; see also B.H., 138 P.3d at 302.
¶ 10 In 2016, the Bureau of Indian Affairs also issued regulations
and guidelines implementing ICWA. People in Interest of L.L., 2017
COA 38, ¶ 15; Indian Child Welfare Act Proceedings, 81 Fed. Reg.
38,778 (June 14, 2016); Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act (Dec. 2016),
https://perma.cc/3TCH-8HQM (2016 Guidelines); see also Notice
of Guidelines, 81 Fed. Reg. 96,476 (Dec. 30, 2016). The 2016
Guidelines and regulations impose a duty of inquiry and notice on
trial courts.
¶ 11 The trial court must ask each participant on the record at the
beginning of every emergency, voluntary, or involuntary child
custody proceeding whether the participant knows or has reason to
know that the child is an Indian child. 25 C.F.R. § 23.107(a)
(2020); see also L.L., ¶ 19. The inquiry must be made at the
5
commencement of the proceeding and all responses should be on
the record. 25 C.F.R. § 23.107(a).
¶ 12 If the court knows or has reason to know or believe that an
Indian child is involved in a child custody proceeding, including
termination of parental rights, the party seeking termination must
provide notice to any identified Indian tribes. 25 U.S.C. § 1912(a);
§ 19-1-126(1)(b). When doing so, the Department must directly
notify the identified tribes of the child custody proceeding and their
right to intervene by registered mail with return receipt requested.
L.L., ¶¶ 24-25.
¶ 13 Whether ICWA’s inquiry and notice requirements were
satisfied is a question of law that we review de novo. People in
Interest of T.M.W., 208 P.3d 272, 274 (Colo. App. 2009).
C. Analysis
¶ 14 The juvenile court could (and should) have made a clearer
record regarding father’s lack of Native American heritage by asking
father to verbally respond to the court’s questions.
¶ 15 Nonetheless, an appellate court “may disregard any error or
defect not affecting the substantial rights of the parties.” C.A.R.
35(c). As relevant here, defects in ICWA inquiry may be harmless if
6
no party has any information suggesting that a child is an Indian
child. See People in Interest of S.R.M., 153 P.3d 438, 441-42 (Colo.
App. 2006).
¶ 16 The context of the hearing at which father appeared makes
clear that the court gave father the opportunity to provide
additional information about any Native American heritage and that
father had no such information. Additionally, neither mother nor
any other party argues on appeal that father had Native American
heritage.
¶ 17 Based on this record, any error in finding that the child was
not an Indian child and that ICWA did not apply to the dependency
and neglect proceeding was harmless.
Statutory Criteria and Standard of Review
¶ 18 To terminate parental rights, clear and convincing evidence
must establish that (1) the child has been adjudicated dependent or
neglected; (2) the parent did not comply with or was not
successfully rehabilitated by an appropriate, court-approved
treatment plan; (3) the parent is unfit; and (4) the parent’s conduct
or condition is unlikely to change within a reasonable time.
7
§ 19-3-604(1)(c), C.R.S. 2021; People in Interest of C.H., 166 P.3d
288, 289 (Colo. App. 2007).
¶ 19 Where resolution of an issue necessitates application of the
termination statute to evidentiary facts, it presents a mixed
question of fact and law. People in Interest of A.M. v. T.M., 2021 CO
14, ¶ 15. We review the juvenile court’s factual findings for clear
error. C.R.C.P. 52. The “credibility of witnesses, the sufficiency,
probative effect and weight of the evidence, and the inferences and
conclusions to be drawn therefrom are all within the province of the
[juvenile] court.” People in Interest of C.A.K., 652 P.2d 603, 613
(Colo. 1982). But a determination of the proper legal standard to be
applied in a case and the application of that standard to the
particular facts of the case are questions of law that we review de
novo. M.A.W. v. People in Interest of A.L.W., 2020 CO 11, ¶ 31.
Reasonable Efforts
¶ 20 Mother argues that the juvenile court erred in finding that she
was unfit because the Department did not make reasonable efforts
to rehabilitate her.
8
A. Relevant Law
¶ 21 To determine whether a parent is unfit, the juvenile court
must consider whether “[r]easonable efforts by child-caring agencies
. . . have been unable to rehabilitate the parent.” § 19-3-604(2)(h);
accord People in Interest of S.N-V., 300 P.3d 911, 915 (Colo. App.
2011). “‘Reasonable efforts’ . . . means the exercise of diligence and
care” to reunify a parent with her child who is in out-of-home
placement. § 19-1-103(114), C.R.S. 2021; see S.N-V., 300 P.3d at
915.
¶ 22 The Department satisfies the reasonable efforts standard by
providing services in accordance with section 19-3-208, C.R.S.
2021. See People in Interest of J.A.S., 160 P.3d 257, 262 (Colo. App.
2007). Such reasonable efforts include screening, assessments,
home-based family and crisis counseling, information and referral
services to available public and private assistance resources,
visitation services for parents with children in out-of-home
placement, and placement services including foster care and
emergency shelter. § 19-3-208(2)(b). Additional services should be
made available if they are determined to be necessary and
appropriate by the case plan and if adequate funding exists.
9
§ 19-3-208(2)(d). Examples include providing transportation to
required services when other transportation is not available, mental
health services, and drug and alcohol treatment services. Id.
¶ 23 “The parent is responsible for assuring compliance with and
success of the treatment plan.” People in Interest of A.N-B., 2019
COA 46, ¶ 28.
B. Analysis
¶ 24 The record supports the juvenile court’s finding that the
Department made reasonable efforts to rehabilitate mother. The
caseworker testified that the Department made referrals for
substance abuse counseling and drug testing, and provided a gas
card for mother to go to UAs, appointments, and visits. The
Department referred mother to a parenting class, and it set up
visits with the child. It also arranged for visits to be supervised by a
different provider after mother complained that the child was
bruised, dirty, and injured and that the first visitation provider was
not taking her concerns seriously.
¶ 25 Mother contends that only inpatient treatment was sufficient
to address her addiction and that the Department failed to provide
such services. She also contends that the juvenile court erred when
10
it attributed her failure to attend inpatient treatment to not signing
releases or otherwise taking the steps necessary to be admitted.
The juvenile court rejected these arguments, and so do we.
¶ 26 Mother’s therapist testified that she left a release of
information at the front desk of the outpatient treatment facility,
which mother signed. But both mother’s therapist and the
caseworker testified that mother did not follow through with
attending inpatient treatment. Mother does not explain what
additional steps the Department failed to take. In fact, the record
shows that mother stopped communicating with the Department
approximately four months before the termination hearing.
¶ 27 For all these reasons, we conclude that the juvenile court did
not err in finding that the Department made reasonable efforts to
rehabilitate mother and reunify the family.
¶ 28 Nevertheless, mother argues that the juvenile court erred by
finding that she was unfit as a matter of law under section
19-3-604(2)(k). She argues that section 19-3-604(2) does not
require a juvenile court to find a parent unfit as a matter of law if
the child has been in foster care for fifteen of the most recent
twenty-two months.
11
¶ 29 Section 19-3-604(2) provides that a juvenile court “shall
consider” whether the child has been in foster care for fifteen of the
most recent twenty-two months along with other relevant factors to
determine whether a parent is unfit. The juvenile court found, with
record support, that mother was unfit after considering that the
child had been in foster care for fifteen of the most recent
twenty-two months, in addition to other factors including her
continuing use of controlled substances and neglect of the child.
See § 19-3-604(2)(e), (f). Testimony at the termination hearing
permitted the juvenile court to find that during the course of the
proceeding mother provided only nine total UAs, most of which were
positive for opiates, and that mother attended only about half of her
scheduled visits with the child before ceasing visits entirely about
four months before the termination hearing.
¶ 30 Mother also argues that whether the child had been in foster
care for fifteen of the most recent twenty-two months is not a
relevant consideration when the Department fails to make
reasonable efforts to reunify the family. See § 19-3-604(2)(k)(III).
We have concluded that the juvenile court did not err by finding
12
that the Department made reasonable efforts to rehabilitate mother
and reunify the family. Accordingly, this argument fails.
¶ 31 Mother next argues that we should “take extra care before
upholding decisions to terminate parental rights” in light of the
COVID-19 pandemic. We acknowledge that the health and safety
protocols instituted to slow the spread of COVID-19 affected many
parents’ ability to visit their children in person and to engage in
certain services. But mother presents no authority for this
proposed heightened standard of review (whatever it might be).
¶ 32 The caseworker testified that mother, who was provided
in-person visits throughout the proceeding, did not attend visits
recently because mother said that “she had a warrant for her arrest
and she was afraid that if she went to visits that she would get
arrested.” Mother has not identified any record evidence suggesting
that she was unable to participate in drug testing, treatment,
parenting classes, or other services because of the pandemic.
Unlikely to Change Within a Reasonable Time
¶ 33 The juvenile court found that mother’s conduct or condition
was unlikely to change within a reasonable time. Mother contends
13
that the juvenile court erred by not allowing her additional time to
complete her treatment.
A. Relevant Law
¶ 34 When determining whether the conduct or condition that
renders a parent unfit will change within a reasonable time, the
court may consider whether any change has occurred during the
pendency of the proceeding, as well as the parent’s social history
and the chronic or long-term nature of the parent’s conduct or
condition. People in Interest of K.B., 2016 COA 21, ¶ 31.
¶ 35 A reasonable time is not indefinite and must be determined by
considering the child’s conditions and needs. People in Interest of
A.J., 143 P.3d 1143, 1152 (Colo. App. 2006). The determination of
a reasonable time is fact specific and varies from case to case.
People in Interest of D.Y., 176 P.3d 874, 876 (Colo. App. 2007).
¶ 36 When, as here, a child is less than six years old when a
petition in dependency and neglect is filed, the expedited
permanency planning (EPP) provisions apply. See §§ 19-1-102(1.6),
19-1-123, C.R.S. 2021; People in Interest of M.T., 121 P.3d 309, 313
(Colo. App. 2005). These provisions require that the child be placed
in a permanent home as expeditiously as possible. § 19-1-102(1.6).
14
B. Analysis
¶ 37 Nothing in the record suggests that mother would have
become fit if given additional time. Instead, testimony at the
termination hearing permitted the juvenile court to find that the
proceeding had been open for seventeen months and that in that
time mother (1) was discharged from integrated mental health and
substance abuse treatment twice; (2) provided only nine total UAs,
most of which were positive for opiates; (3) failed to complete the
required parenting class; and (4) attended only about half of her
scheduled visits with the child before ceasing visits entirely about
four months before the termination hearing.
¶ 38 The caseworker also testified that she was familiar with
mother based on a case several years ago, where mother
successfully completed an adult treatment court program, but that
during the present dependency and neglect proceeding mother had
not indicated a willingness to engage with the treatment plan.
Accordingly, the caseworker opined that mother would not become
fit in a reasonable time. Based on this record evidence and the EPP
guidelines, the juvenile court did not err by finding that mother’s
15
conduct or condition was unlikely to change within a reasonable
time.
¶ 39 On appeal, mother does not suggest how much additional time
she would need to become fit. And she does not dispute the
juvenile court’s finding that she made no progress in the last
months of the case, instead appearing to regress. Accordingly, the
juvenile court did not err by not allowing mother additional time to
complete her treatment.
No Less Drastic Alternative
¶ 40 Lastly, mother argues that the juvenile court erred by finding
that no less drastic alternative to termination existed.
A. Relevant Law
¶ 41 The juvenile court must consider and eliminate less drastic
alternatives before it terminates the parent-child legal relationship.
C.S. v. People in Interest of I.S., 83 P.3d 627, 640-41 (Colo. 2004).
When considering less drastic alternatives, the court bases its
decision on the best interests of the child, giving primary
consideration to the child’s physical, mental, and emotional
conditions and needs. § 19-3-604(3).
16
¶ 42 When determining whether placement with a relative or other
person is a viable alternative to termination, the juvenile court may
consider various factors, including whether an ongoing relationship
with the parent would be beneficial or detrimental to the child.
People in Interest of A.R., 2012 COA 195M, ¶ 38. This
determination will be influenced by a parent’s fitness to care for her
child’s needs. See § 19-3-604(2); A.R., ¶ 38. Long-term placement
with a relative is not a viable less drastic alternative to termination if
the child needs a stable, permanent home that can only be assured
by adoption. People in Interest of M.B., 70 P.3d 618, 627 (Colo. App.
2003).
B. Analysis
¶ 43 The record supports the juvenile court’s finding that no less
drastic alternative to termination existed. The caseworker testified
as an expert in child protection that termination and adoption were
in the child’s best interests. The caseworker further testified that
the child had been in the same foster home since her release from
the hospital at birth and that the foster family wanted to adopt her.
She testified that the Department investigated other placement
options such as family friends and mother’s aunt but that none of
17
those individuals were appropriate for long-term placement.
Maternal grandmother had placement of mother’s older children,
but the caseworker testified that because of her age and medical
limitations maternal grandmother was not physically able to care
for C.P.
¶ 44 Mother suggests that the juvenile court should have ordered
an APR with the foster family, but the caseworker testified that the
foster family was unwilling to accept an APR, and no record
evidence suggests that an APR with the foster family was an
available option.
¶ 45 Based on this evidence in the record, the juvenile court did not
err in finding that no less drastic alternative to termination existed.
Disposition
¶ 46 The judgment is affirmed.
JUDGE BROWN and JUDGE JOHNSON concur.
